Congress Should Protect, Not Punish, Unaccompanied Children

Young boys sleep in a holding cell where hundreds of mostly Central American immigrant children are being processed and held at the U.S. Customs and Border Protection Nogales Placement Center in Nogales, Arizona on June 18, 2014.

The recent surge in unaccompanied migrant children reaching the US cannot justify longer detention periods. Countries around the world facing large numbers of arrivals are addressing the issue without detaining most kids.

Clara Long, US researcher

(Washington, DC) – The United States government’s policy of detaining unaccompanied migrant children, some for long periods, and providing inadequate processing puts them in harm’s way. On June 24, 2014, the US House of Representatives Committee on Homeland Security held a hearing on unaccompanied migrant children – children traveling without parents or guardians. On June 25, the House Judiciary Committee will also hold a hearing on the issue.

The US government predicts that 90,000 unaccompanied migrant children will cross the US-Mexico border in fiscal year 2014, more than 10 times the number who crossed in 2011. Thousands more children have crossed with a parent, also an increase from previous years.

“The US government’s policy of detaining large numbers of children harms kids and flouts international standards,” said Clara Long, US researcher at Human Rights Watch. “Congress should be exploring alternatives to detention that other countries facing spikes in border crossings have used successfully.”

US law allows Customs and Border Protection (CBP) to detain children for a maximum of 72 hours. Prior to the current surge, children were held for only about 12 hours, but recent reports indicate that CBP is holding children for periods closer to 10 days or 2 weeks. The children are then transferred to the Office for Refugee Resettlement (ORR) in the Department of Health and Human Services, where they again may be detained.

International human rights standards provide for detention only as a last resort and for very short periods. The United Nations stated in 2013 that children should never be detained for immigration reasons, and that immigration detention can never be considered in a child’s “best interests.”

A wide variety of research studies link immigration detention with mental health consequences for children, including harm that lasts beyond the period of detention. Unaccompanied children in particular are recognized as particularly vulnerable.

“The recent surge in unaccompanied migrant children reaching the US cannot justify longer detention periods,” Long said. “Countries around the world facing large numbers of arrivals are addressing the issue without detaining most kids.”

Under 2013 legislation, European Union member countries may only detain unaccompanied children in “exceptional circumstances.” Children must never be held in prisons and they must be released as soon as possible. Belgium has a wide range of housing options outside detention, including individual and collective reception facilities that allow migrants to come and go as they wish. Malta, a key gateway to the European Union facing unprecedented numbers of child migrants, pledged in March 2014 to end immigration detention of children.

Current US policies applied to border crossers also fall short of international standards that require careful screening of children in light of their best interests for being trafficking victims or refugees, and facing reprisals from traffickers or rights abusers upon return. The children are not systematically provided court-appointed attorneys, although a small pilot program offers some attorney assistance, nor appointed guardians, both of which are suggested under international standards.

Under current US policy, unaccompanied migrant children who may be refugees must undergo initial asylum screenings and some trafficking screenings by armed and uniformed CBP officers. By contrast, international standards say it is in unaccompanied children’s best interests to be assessed in a friendly and safe atmosphere by qualified professionals who are trained in age- and gender-sensitive interviewing techniques.

The House Homeland Security hearing highlighted the widening gap between US lawmakers’ perspectives and the need to treat unaccompanied children fairly and in a manner that minimizes harm. For instance, Representative Mike Rogers of Alabama said, “Why aren’t we putting them on a bus … and sending them back to Guatemala?” Others suggested that the government should focus on deporting the children. Representative Paul Broun of Georgia called the children “lawbreakers” and asked what is being done to try to deport them and their families.

“Many unaccompanied migrant children are extremely vulnerable to abuse upon return to their home countries,” Long said. “Subjecting them to conveyor-belt hearings or none at all is likely to result in the US conducting unlawful returns that will put these children at grave risk.”

Human Rights Watch called on the US government to:

Institute alternatives to detention for all unaccompanied migrant children either by releasing them to appropriately screened guardians or by placing them in home-like settings with full access to education, adequate nutrition and sanitation, social interaction, and recreation;

Ensure that only in extremely rare and exceptional cases are any unaccompanied migrant children subjected to immigration detention;

If detention is used at all, it must be for the shortest amount of time and in an appropriate setting where children’s needs can be addressed without causing further trauma or harm;

Provide full and fair screenings of unaccompanied migrant children by a designated child welfare specialist skilled in gathering timely and pertinent information in a child-friendly and age-appropriate manner;

Ensure that unaccompanied children, particularly asylum seekers, receive the assistance of counsel and a guardian charged with representing their best interests.